The controversy in Matter of McGraw v Town Board of Town of Villenova (4th Dept Docket No CA 19-01362, Aug. 20, 2020) arose from the environmental review conducted on a proposed wind farm in upstate New York. The developer of the project sought a local code amendment and special permit from the Respondent Town Board for 29 wind turbines up to 492 feet in height. As part of the mandatory environmental review process pursuant to SEQRA, the developer prepared a draft environmental impact statement, and later, a supplemental draft impact statement, both of which the Town Board accepted. The Town Board accepted a final environmental impact statement for the project in November 2016.

More than a year after it received its approvals, the developer returned to the Town Board with an application to increase the height of the wind turbines another 100 feet for a maximum height of 599 feet. The developer submitted a full environmental assessment form (FEAF) as part of its application.

Based on the information contained in the FEAF, the Town Board declined to order a second supplemental environmental impact statement; adopted a negative declaration of environmental significance, and approved the developer’s amended application. The Petitioners sued alleging that the Town Board failed to comply with SEQRA by not taking the requisite “hard look” at the environmental issues associated with increasing the height of the turbines, particularly with respect to how the project might impact the endangered bald eagle. The lower court agreed.

The Fourth Judicial Department on appeal reversed the lower court’s decision finding that the Town Board had properly exercised its discretion when it declined to conduct further environmental review. The Court wrote:

During the SEQRA process, a SEIS may be required to address “specific significant adverse environmental impacts not addressed or inadequately addressed in the EIS,” arising from, inter alia, changes in the project (6 NYCRR 617.9 [a] [7] [i]). A decision to require a SEIS “must be based upon . . . the importance and relevance of the information; and . . . the present state of the information in the EIS” (6 NYCRR 617.9 [a] [7] [ii]). “A lead agency’s determination whether to require a SEIS–or in this case a second SEIS–is discretionary” (Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d 219, 231 [2007]), and such determination “should be annulled only if it is arbitrary, capricious, or unsupported by the evidence” (id. at 232).

. . . The Town Board’s discretionary determination was not arbitrary, capricious, or unsupported by the evidence. The prior submissions concerning the impact of the project on bald eagles, combined with the updated materials submitted with the latest project modification, were sufficient to establish that the proposed changes would not adversely impact bald eagles. The materials established that collisions between raptors and wind turbines are rare, and that even the higher, 599-foot turbines lie below the normal flight altitude of bald eagles.

(Memorandum and Order, p. 2). Thus, the Appellate Court rejected the Petitioners’ contentions in favor of the reasoned discretion of the reviewing agency and dismissed the petition in its entirety.

A copy of the Court’s decision can be accessed by clicking the following link: Matter of McGraw.

As a “home rule” state, New York’s zoning and other land use decisions are typically made at the village, town, or city level.  However, Section 239-m of the General Municipal Law (GML) requires a referral to, and a subsequent recommendation by, the local county planning commission for certain local land use actions that might affect the interests of other jurisdictions. The failure of a local board to make a required referral can have severe consequences, including having its decision deemed void and unenforceable.

General Municipal Law § 239-m

GML § 239-m(2) provides that any village, town, or city that is located in a county that has a county planning agency or, in the absence of a county planning agency, that is located in the jurisdiction of a regional planning council, must refer the following proposed actions to the planning agency or council before taking final action:

  • Adoption or amendment of a comprehensive plan;
  • Adoption or amendment of a zoning ordinance or local law;
  • Issuance of special use permits;
  • Approval of site plans;
  • Granting of use or area variances; and
  • Other authorizations that a referring body may issue under the provisions of any zoning ordinance or local law.

However, referrals of these actions are required only if they apply to real property within 500 feet of any of the following:

  • The boundary of any village, town, or city;
  • The boundary of any existing or proposed county or state park or other recreation area;
  • The right-of-way of any existing or proposed county or state parkway, thruway, expressway, road, or highway;
  • The existing or proposed right-of-way of any stream or drainage channel owned by the county or for which the county has established channel lines;
  • The existing or proposed boundary of any county or state owned land on which a public building or institution is situated; or
  • The boundary of a farm operation located in an agricultural district (except with respect to the granting of area variances).

The purpose of a GML § 239-m referral is to ensure that regional or county-wide concerns are taken into consideration in the local planning process.

The county planning agency or regional planning council to which a referral is made has 30 days (subject to being extended by mutual agreement) to report its recommendations to the referring body. This time starts to run only after the planning agency or council has received a full statement of the proposed action.  The planning agency or council’s report must be accompanied by a statement of the reasons for its recommendations. If the planning agency or council fails to issue a report within this period, the referring body may act on the proposed action.

Once the planning agency or council has reviewed the proposed action, it may recommend approval, modification, or disapproval of the proposed action, or it may report that the proposed action has no significant county-wide or inter-community impact and deem it to be a matter for local determination.  If the planning agency or council recommends modification or disapproval of a proposed action, the referring body may not act contrary to the recommendation unless a supermajority of the referring body – that is, a majority plus one of all of its members – votes to do so.

GML § 239-m(3)(c) also authorizes a county planning agency or council to enter into agreements with municipalities to provide that certain proposed actions otherwise subject to referral are matters of local determination, rather than of inter-community or county-wide concern, and are not subject to referral.

Suffolk County

Zoning and planning actions in Suffolk County must also comply with the referral requirements of the Suffolk County Administrative Code (SCAC), which requires review and recommendation over a slightly expanded scope of zoning actions within the county as compared to GML § 239-m.

In particular, Section A14-14 of the SCAC requires that towns and villages refer to the Suffolk County Planning Commission (SCPC) any zoning regulation or amendment that would change the district classification of, or regulations applying to, real property lying within one mile of a nuclear power plant or airport or within 500 feet from:

  • The boundary of any village or town;
  • The boundary of any existing or proposed county, state, or federal park or other recreation area;
  • The right-of-way of any existing or proposed county or state parkway, thruway, expressway, road, or highway;
  • The existing or proposed right-of-way of any stream or drainage channel owned by the county or for which the county has established channel lines;
  • The existing or proposed boundary of any other county, state, or federally owned land held or to be held for governmental use;
  • The Atlantic Ocean, Long Island Sound, any bay in Suffolk County, or an estuary of any of the foregoing bodies of water; or
  • The boundary of a farm operation located in an agricultural district.

Following the referral of a zoning action to the SCPC, the Commission has 45 days after receipt of a full statement on the proposed action to issue its report.

In order to reduce the administrative burden on local municipalities and to focus on actions with inter-community or county-wide implications, the SCPC, by resolution passed on September 3, 2008, determined that the following actions are matters for local determination that will not be subject to referral pursuant to the GML or the SCAC, provided that an inter-municipal agreement with the referring body is entered into:

  • All area variances associated with single-family residences.
  • Change of one permitted use to another with no changes in parking requirements (i.e. retail to office).
  • Minor additions less than 1,000 square feet with no change to use or occupancy.
  • Site plan applications proposing less than 5,000 square feet of new or renovated floor area or less than 10,000 square feet of land disturbance.

However, if any of the above actions are the subject of a Positive Declaration pursuant to the State Environmental Quality Review Act or involve property abutting state or county parkland, the Atlantic Ocean, Long Island Sound, any bay in Suffolk County or estuary of any of the foregoing bodies of water, they shall be subject to the full SCPC review process.  For a more detailed discussion of the benefits of inter-municipal cooperation under GML § 239-m, see our prior blog post, No More General Municipal Law 239-m County Referrals!


The law is clear that a local government’s failure to refer a proposed zoning or land use planning action to the relevant county commission can lead to its approval of the proposed action being invalidated by the courts. For example, in Matter of LCS Realty Co., Inc., 273 A.D.2d 474 (2d Dep’t 2000), the Appellate Division, Second Department, ruled that the Village of Roslyn’s comprehensive master plan was void and unenforceable because the village failed to comply with GML § 239-m.  More recently, in Matter of Calverton Manor, LLC, 160 A.D.3d 842 (2d Dep’t 2018), the  same court ruled that the Town of Riverhead’s failure to refer a proposed transfer of development rights law constituted a “jurisdictional defect” that rendered the adopted law void and unenforceable.

Accordingly, local officials must adhere to the requirements of GML § 239-m and other county referral laws in order to limit the risk that their zoning or other land use decisions will be invalidated.

Southampton Town GIS


Applicants sought to subdivide two lots located at 550 Hill Street and 554 Hill Street in the Village of Southampton into three residential lots with a 25 foot wide access easement along the southerly side of an adjoining property to provide access to one lot from Captains Neck Lane. The two lots proposed to be subdivided are long and narrow lots comprised of 23,070 square feet and 48,284 square feet respectively, located in a split zoning district (R-40 and R-120). The proposed subdivision required lot area, lot width, lot frontage and setback relief from the Zoning Board of Appeals (hereinafter “ZBA”). 554 Hill Street is improved with a pre-existing, nonconforming, industrial storage and warehouse that is actively used by a moving and storage company. The ZBA granted the relief required to subdivide the two lots into three and neighboring property owners (hereinafter “petitioners”) appealed the determination in an Article 78 Proceeding.

The petitioners argued that the pre-existing, nonconforming storage and warehouse use on the property was more benign than the proposed conforming, residential use. Additionally, they argued that the proposed three-lot subdivision and resultant increase in density would create a nuisance to neighbors and violate the Village Comprehensive Plan to maintain small scale development. Petitioners further argued that the ZBA exercised legislative powers by re-zoning the property under the guise of granting variances. The 550 Hill Street lot is pre-existing, nonconforming with respect to lot area at 43,242 square feet since it is located in the R-120 Zoning District which requires 120,000 square feet per lot. The 552 Hill Street lot is 79,884 square feet located in both the R-40 and R-120 zoning districts. Thus, petitioners asserted the approved subdivision lots deviated so substantially from the minimum lot areas and setbacks required in the R-40 and R-120 zoning districts that it constituted a re-zoning of the lots. Finally, petitioners asserted that the ZBA failed to consider the five factors required by Village Law and requested that the determination be annulled and set aside.

The Supreme Court Suffolk County, in the Matter of Ruttenberg et al. v. Zoning Board of Appeals of the Village of Southampton, 550 Hill Street, LP, and 554 Hill Street LP, dated May 18, 2020, upheld the Zoning Board’s determination. The Court noted that the central issue posed by petitioners was “whether the ZBA, in granting the area variances, effectively re-zoned the two lots and, thereby, impermissibly exercised legislative powers.” The Court disagreed, relying in part on the Zoning Board’s determination that “there are only one or two lots in the neighborhood that conform to the current zoning, and that the majority of the lots within the surrounding R-40 zone are generally smaller than the required 40,000 square feet and have an average lot size of approximately 34,465 square feet.”

The Court referred to the broad discretion afforded to local Zoning Boards and found that, (i) the ZBA considered each of the five statutory factors of the area variance balancing test, (ii) the ZBA’s conclusions were supported by ample evidence and had a rational basis, and (iii) the ZBA’s actions were not arbitrary and capricious. The Court upheld the ZBA determination and denied the Petition.


Last February, in Dreyer v Stachecki, 2020 NY Slip Op 50134(U), the Suffolk County Supreme Court denied an unopposed motion for pre-action discovery. CPLR Section 3102(c) authorizes disclosure – prior to commencement – to aid in bringing an action or proceeding. In this case, the petitioner-movant sought the production of documents and depositions in anticipation of his challenges to certain land use determinations.

Within the Town of Southampton (“Southampton“), the petitioner owns a home adjacent to a 20-acre parcel owned by one of the respondents. In April 2019, Southampton’s Department of Land Management issued the respondent a certificate of occupancy (“CO“) for a pre-existing, non-conforming use for the receipt of natural organic waste (trees, brush, stumps, leaves and other clearing debris). Notably, Southampton Town Code Section 330-167 permits the Zoning Board of Appeals (“ZBA“) to approve a change from one non-conforming use to another if certain criteria are met.

The petitioner alleged the owner of the 20-acre parcel planned to convert use of the premises from non-conforming waste receipt to a 120-unit condominium development, and that – in furtherance thereof – the respondents signed false affidavits to procure the CO. He anticipated bringing an action and/or proceeding seeking, among other things, to prevent the development. The petitioner contended that pre-action discovery was necessary to obtain information to demonstrate the falsity of the affidavits. He also argued it was necessary to obtain the information before the Southampton ZBA considered the change of use, and before the Southampton ZBA and Planning Board considered the application for construction of the development.

The Court denied the petitioner’s motion. “Pre-action disclosure can be used to enable the plaintiff to frame a complaint, to preserve evidence for a forthcoming lawsuit, and to ascertain the identities of prospective defendants. [It] may not be used to ascertain whether a prospective plaintiff has a cause of action worth pursuing.” Further, the Court should only grant such relief where the movant demonstrates he or she has “a meritorious cause of action and that the information sought is material and necessary to the actionable wrong.” Put another way, the movant “must allege facts fairly indicating that he [or she] has some cause of action.”

Here, the petitioner failed to demonstrate he had a meritorious claim. He did not submit an affidavit of someone with personal, first-hand knowledge of facts establishing a cause of action; rather, he relied solely upon a verified petition and affirmation of counsel consisting of unsubstantiated conclusory allegations regarding his theory of the case. In denying the petitioner’s motion, the Court emphasized that “[p]re-action discovery is not permissible as a fishing expedition to ascertain whether a cause of action exists.”

This week, a not-for-profit hunters advocacy group, Hunters For Deer, Inc. (HFD), won a decisive victory in the Second Department based on New York’s preemption doctrine.  In Hunters for Deer, Inc. v Town of Smithtown, ____AD3d  (August 18, 2020) the Appellate Division settled a conflict preemption argument between State and local government regulations upholding the State’s authority to regulate the discharge of bows and arrows under the Environmental Conservation Law (ECL) despite a more restrictive local municipal regulation by the Town of Smithtown.

The New York Constitution “confers broad police power upon local government relating to the welfare of its citizens” (New York State Club Assn. v City of New York, 69 NY2d 211, 217, affd 487 US 1; see NY Const, art IX, § 2[c]).  New York’s Municipal Home Rule allows local governments to adopt local laws that tend to create a patchwork of rules and regulations across the State that can balkanize effective state wide regulation.   However, “local governments may not exercise their police power by adopting a law inconsistent with . . . any general law of the State” (Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91, 96).

As succinctly stated by the Court of Appeals:

“[t]he preemption doctrine represents a fundamental limitation on home rule powers. While localities have been invested with substantial powers both by affirmative grant and by restriction on State powers in matters of local concern, the overriding limitation of the preemption doctrine embodies ‘the untrammeled primacy of the Legislature to act * * * with respect to matters of State concern.’ Preemption applies both in cases of express conflict between local and State law and in cases where the State has evidenced its intent to occupy the field” (citations omitted).

See, Matter of Cohen v. Board of Appeals of the Village of Saddle Rock,  NY2d 395 [2003].

In Hunters for Deer, Inc. v. Town of Smithtown, the Court was faced with the novel question of whether a Town of Smithtown ordinance prohibiting the discharge of “firearms” on private property, within 500 feet of a dwelling (See, Town Code § 160-4 and §160-5) could supersede a less restrictive State law.  The Town’s law is stricter than New York’s ECL §11-0931(4)(a) (2), which the State amended in 2014 to reduce bow and arrow setbacks from 500 to 150 feet for bows.  The ECL amendment was part of a state wide effort to reduce ballooning deer populations through increased bowhunting opportunities made possible by less restrictive setbacks.

At the center of the litigation was the State’s definition of “firearm.”  The Town ordinance defines “firearm” to include a “weapon which acts by the force of gunpowder or from which a shot is discharged by the force of an explosion, as well as an air rifle, an air gun, a BB gun, a slingshot and a bow and arrow.” (See, Town Code §160-2) (emphasis added).  The State’s ECL excludes bows and defines “firearm” as “any rifle, pistol, shotgun or muzzle loading firearm which by force of gunpowder, or an airgun . . . , that expels a missile or projectile capable of killing, wounding or otherwise inflicting physical damage upon fish, wildlife or other animals” (6 NYCRR 180.3[a]).

The Court found that the State’s definition of “firearm” does not encompass a bow and arrow, and held that to the extent the Town ordinance seeks to regulate the discharge setback of a bow and arrow within the Town, it is invalid as preempted by the State’s definition.  Thus, the Town’s ordinance, which seeks to prohibit the discharge of a bow and arrow is preempted in circumstances where permitted under State law.

While it may not be the “shot heard around the world,”  the Court’s rejection of the Town’s home rule authority is another arrow in the quiver of the State’s wildlife management, especially given the statewide importance of coordinated wildlife management.

View of Hudson River from Upper Nyack, New YorkPetitioner, Claude Simon (“Petitioner”), owns approximately 2.25 acres of property in the Village of Upper Nyack (the “Village”), which he sought to subdivide into two separate lots.  The first lot would contain the existing dwelling and other existing improvements.  The vacant second lot would be improved with a single-family dwelling.  However, the Village advised Petitioner that he would need to obtain variances for the subdivision.  Accordingly, Petitioner “filed an application for what he believed to be the proper variances.”

During the pendency of Petitioner’s application, the Chairman of the Village Zoning Board of Appeals (the “ZBA”), Thomas Englert (“Englert”), appeared at a Village Planning Board (the “Planning Board”) hearing “in his capacity as a neighbor of Petitioner.”  Englert, who ultimately recused himself from voting on Petitioner’s application, complained that Petitioner’s “proposed subdivision would adversely impact his property.”  The Planning Board, as lead agency under the State Environmental Quality Review Act (“SEQRA”), required Petitioner to address certain issues of concern to neighbors and the ZBA.  In particular, Petitioner was asked whether the proposed subdivision would adversely impact the views from neighboring properties, specifically, neighbors’ views of the Hudson River.  Ultimately, the Planning Board found that the proposed subdivision would not have significant adverse environmental or aesthetic impacts on the surrounding areas.  Accordingly, the Planning Board issued a negative declaration under SEQRA.

Despite the supporting evidence presented by Petitioner, and the Planning Board’s environmental review and subsequent findings, the ZBA denied Petitioner’s application.  In its determination, the ZBA found that Petitioner’s requested variances “were substantial, and that granting them would produce an undesirable change in the character in the neighborhood.”  However, the ZBA failed to “explain its departure from the Planning Board’s determinations.”

Petitioner brought an Article 78 proceeding seeking to annul the ZBA’s determination denying the variances.  Judicial review of an administrative determination is limited to whether there is a rational basis to support it.  A court undertaking this review shall set aside the determination only if it is arbitrary, capricious, or an abuse of discretion.  The Supreme Court held that the ZBA’s determination contained only conclusory findings, and was therefore “arbitrary, capricious, and not supported by an objective factual basis in the record.”  The ZBA essentially ignored the Planning Board’s findings that no adverse environmental or aesthetic impact to the neighborhood would result from the variances.  Instead, the ZBA’s denial seemed to be a result of “general community opposition” from two neighboring property owners who claimed, without support, that the proposed subdivision would result in a reduction of their property values.  Even if true, such grounds are insufficient to establish a rational basis to deny Petitioner’s application.  Accordingly, the Supreme Court granted the petition to set aside the ZBA’s determination and ordered the ZBA to grant the variances.  The ZBA appealed the Supreme Court’s decision, but the Second Department ultimately affirmed on the same grounds.

Takeaway:  Administrative agencies, such as local zoning boards, enjoy significant discretion in deciding land use applications affecting the municipalities they serve.  However, that discretion is not unlimited.  All administrative determinations must be supported by a rational basis.  When no rational basis exists, the determination is subject to reversal upon judicial review.

On July 21, 2020, the Huntington Town Board adopted significant amendments to the Town’s zoning and site plan regulations for mixed-use buildings in the Town’s C-6 (General Commercial) Districts. The amendments, set forth in a series of resolutions (click here Huntington Zoning Amendments), are aimed at controlling the scale of future mixed-use buildings, reducing their burden on public infrastructure, and protecting the suburban character of the Town’s hamlet centers.¹ Undoubtedly, preserving the positive aspects of suburban living is an admirable goal; however, some opponents of the legislation argue that it will impede revitalization within the Town, and efforts to meet growing housing needs.

The Town’s C-6 Districts are most concentrated in the hamlets of Huntington Village, Greenlawn, and East Northport, but they extend well beyond those areas. According to the Huntington GIS portal, properties zoned C-6 dominate the landscape along New York Avenue and on significant portions of Jericho Turnpike, Depot Road, and West Hills Road. Smaller pockets of C-6 properties exist throughout the Town north of Jericho Turnpike.

Regardless of where C-6 properties are located, they are all subject to new dimensional standards and parking requirements for mixed-use buildings. At the outset, all mixed-use buildings in C-6 Districts are now subject to site plan review, (§ 198-27[A][22]), and the following design standards:

  • The height of mixed-use buildings is capped at 38 feet, except in the Huntington Station Overlay District, where it remains 45 feet. (§ 198-27[G][3]).
  • The storage and community space on the ground floor is limited to 15% of the total floor area. (§ 198-27[A][22][c], [23][c]).
  • On-site parking spaces used to satisfy the requirement for commercial uses are not counted toward the on-site parking required for residential uses (i.e. no shared parking between commercial and residential uses on the same site).
  • The parking ratio for residential uses in mixed-use buildings is 1.5 spaces for every studio and one bedroom apartment, plus 0.5 spaces for each additional bedroom.
  • (§ 198-27[A][22], [A][23]).
  • Mixed-use buildings with new construction that will modify or expand the footprint of an existing building are subject to the added restriction that the combined area of the upper stories is capped at 150% of the area of the first floor of the building. (Note: Does not apply in the Huntington Station Overlay District). (§198-27[A][23][e]).

Under the pre-existing Zoning Code, mixed-use buildings in the C-6 District were already subject to restrictions prohibiting upper floors from having larger footprints than the ground floor, and the express requirement that they comply with the district’s height, area and bulk requirements. (§ 198-27[A][[22][a], [b]). The new amendments preserved these requirements and added to them.

Mixed-use projects on properties zoned C-6 and located within one of the Town’s hamlet centers and/or within the Town of Huntington Sewer District are subject to additional planning requirements relating to traffic and sewage disposal.

  • Applications for mixed-use buildings in Town hamlet centers must include a traffic impact study. If the project will impact the level of service at an intersection, the project sponsor will be required to provide mitigation measures to maintain or improve the level of service. (Town Code Ch. A202, §
  • Applications for mixed-use buildings within the Huntington Sewer District must be submitted to the Town’s Department of Planning and Environment and Department of Environmental Waste Management for a joint review to confirm adequate sewer capacity before a site plan application will be entertained. (Town Code Ch. A202, §

Finally, mixed-use buildings within the Huntington Village Hamlet Center, specifically, are subject to a third level of new standards and requirements.

  • Whenever a mixed-use building cannot comply with the Town’s drainage requirements, whether due to site constraints or for some other reason, the project sponsor is required to pay money equal to the estimated cost of the drainage improvements, as determined by the Town, into a dedicated Town fund for the construction of drainage improvements in the same watershed area. (Town Code Ch. A202, §
  • Projects involving construction of new buildings, front facades, and exterior additions and alterations exceeding 1,000 square feet are subject to architectural review coordinated with the Town’s Historic Preservation Commission. (Town Code Ch. A202, §
  • Municipal parking facilities the Town acquired on or after September 1, 2019 and located within the Huntington Village Hamlet Center cannot be used to satisfy the parking requirements for private properties. (§ 198-44[A]).

The sponsors of the zoning amendments, Supervisor Chad Lupinacci and Councilman Ed Smyth, lauded the passage of the legislation as a major step in protecting the unique character of the Town’s centers and curtailing undesirable development trends that evolved following prior amendments to the Town’s zoning code.² Some, however, are not on board with the new changes. Council members Joan Cergol and Mark Cuthbertson both voted down the amendments to the C-6 District. One commenter, Roger Weaving of the Huntington Township Housing Coalition, remarked that the legislation unnecessarily restricts developers’ ability to build housing–affordable housing, in particular–in the Town’s commercial centers where many lower paid individuals are compelled to seek work.³

Development projects do not happen overnight, and as a result, the impact of new zoning legislation is rarely felt immediately. Accordingly, it may be some time before the true impact of Huntington’s newest zoning amendments is known.

If you have any questions or comments on this post, please feel free to contact me.

1 (Town of Huntington News Details 7/23/2020).

2 (Town of Huntington News Details 7/23/2020).

3 Weaving, Roger, Op-Ed: A Sad Day for Huntington Housing, Huntington NOW, July 31, 2020 (



Last week, New York’s State Legislature passed a bill (A10001) seeking to amend NYS Environmental Conservation Law (“ECL”) §23-2703 in order to protect Long Island’s sole source aquifer.  The amendment would allow local governments in Nassau and Suffolk counties the ability to prohibit sand mining operations where it is determined that mining is “inconsistent with water quality protection and public health.”  Governor Andrew Cuomo must still sign the bill for it to become law.

Long Island, with more than 20 active sand mines, has historically been a battleground pitting environmentalists against construction advocates over the long-term impacts caused by excavating sand over of the community’s sole source aquifer.  Environmentalists have long warned about the peril of removing the sand filtering layers above the aquifer, which is also considered some of the best material for the manufacturing of concrete in the world.

Although the New York State Department of Environmental Conservation (“DEC”) has sole authority over issuing mining permits under the detailed legislative scheme of ECL (§23-2701 – §23-2727), the statue currently contains the following provision with respect to the preemption of local laws: “nothing in this title shall be construed to prevent any local government from enacting local zoning ordinances or other local laws which impose stricter mined land reclamation standards or requirements that those found herein.” ECL 23-2703[2]).  The Legislature has, in effect, provided for a State-wide standard for regulating mining, while at the same time recognizing the legitimate concerns and home rule of local municipalities.

In seeking to strike the appropriate balance between protecting Long Island’s drinking water supply and a necessary construction industry, this bill’s amendment again walks the fine line between “economically sound and stable mining industry” and “sound environmental management practices.”

Importantly, although this amendment states that local governments will have “concurrent authority” with the DEC, it cedes additional control to local municipalities to prohibit sand mining where it is found that there is contamination present or a determination that sand mining is inconsistent with water quality and public health.

The question remains how this bill with a clear nod to Long Island municipalities will allow sand mining to remain active on the island.

Town of Southampton GIS

Ronald A. Kaye, the property owner at 39 Actors Colony Road, Village of North Haven, sought to subdivide his 157, 241 square foot property into two residential lots. The subject property is located in the Residence R-1 Zoning District where the minimum lot size is 80,000 square feet. In October of 2016, he made an application to the Zoning Board of Appeals (“ZBA”) for a lot area variance to subdivide the property into two lots, one measuring 77,241 square feet and the other 80,000 square feet.

The Zoning Board by decision dated May 9, 2017, denied the application. See Village of North Haven Zoning Board of Appeals Decision No. 391A, Application of Ronald A. Kaye, dated May 9, 2017.  In its determination, the ZBA listed the neighboring properties in the Actors Colony Road neighborhood including the sizes of those properties, the majority of which were larger than 80,000 square feet. While the applicant claimed that the neighborhood included smaller nonconforming lots around Actors Colony Road, the ZBA felt otherwise stating, “applicant’s representatives sought over and again to enlarge the Actors Colony neighborhood in order to dilute or distort distinctly larger lot sizes dominating the neighborhood.” The ZBA further found, “to the naked eye the prevailing character of the Actors Colony Road neighborhood is a neighborhood of larger lots each improved with single family residences…to the naked eye the neighborhood of larger lots appears different from the encircling area of smaller non-conforming lots, none of which infiltrate into the larger lot neighborhood.”

Moreover, applicant’s argument that the relief requested was de minimis at 3.45% and therefore not substantial, failed to convince the ZBA. The ZBA stated, the relief sought as a percentage did not diminish the substantial detriment to the neighborhood if the relief were granted and then applied as a precedent…” In its decision, the ZBA listed every property in the Actors Colony neighborhood that could be affected by the determination as precedent, listing the number of lots that each property could yield, noting the “net impact of the foregoing would be an addition of 15 lots within the Actors Colony Road neighborhood.”

Kaye appealed to the Supreme Court, Suffolk County and by decision dated June 18, 2018, the Court upheld the ZBA’s denial.  Citing the extensive case law supporting the broad discretion afforded to local zoning boards in considering applications for variances and the limited nature of judicial review, the Court found the ZBA’s determination had a rational basis and was supported by substantial evidence in the record. The Court emphasized that the property owner’s hardship was self-created since he was aware of the zoning upon purchase and that granting the variance would have a “detrimental future impact on the unique nature of the Actors Colony Road neighborhood and result in an undesirable change to the character of that neighborhood.” The Supreme Court dismissed the Article 78 Proceeding.

Kaye appealed the Supreme Court’s determination to the Appellate Division, Second Department where the Court upheld the ZBA’s denial yet again. In the Matter of Ronald A. Kaye v. Zoning Board of the Village of North Haven, Index No. 2019-00851, dated July 15, 2020, the Court held that “contrary to petitioner’s contentions, the ZBA’s determination that the introduction of a substandard lot was detrimental to, and would cause an undesirable change in the character of the neighborhood which was characterized by oversized lots, had a rational basis and the ZBA was entitled to consider the effect its decision would have as precedent.” Ultimately, the Court upheld the Supreme Court’s determination to deny the petition and dismiss the proceeding.

In Cady v Town of Germantown Planning Bd., 2020 NY Slip Op 03440 [3d Dept 2020], the Appellate Division, Third Department, reversed the Columbia County Supreme Court’s judgment annulling site plan approval, and dismissed the Article 78 petition. Among other things, the Court’s decision addressed whether the Planning Board exceeded its authority and improperly interpreted the zoning code when it approved a 71-foot façade for a project within a scenic overlay district where the zoning code “suggested” a 50-foot limitation.

In January 2015, applicant Primax Properties, LLC (“Primax”) applied to the Town of Germantown (“Germantown”) Planning Board for subdivision and site plan approval to subdivide a 6.1-acre lot into two lots; the owners would retain a 4.7-acre lot, and other 1.4-acre lot would be conveyed to Primax for the construction of a 9,000 square-foot Dollar General store. The retail store is a permitted use requiring site plan approval, and the property is within Germantown’s scenic viewshed overlay district – designed to protect the Hudson River corridor and the Catskill Mountain viewshed in accordance with the comprehensive plan.

The Germantown Planning Board declared itself lead agency for review of Primax’s application under the State Environmental Quality Review Act (“SEQRA”) and issued a positive declaration. After various draft environmental impact statements (“EIS”) and public hearing and comment, Primax submitted a final EIS which the Germantown Planning Board accepted. The Germantown Planning Board also adopted a draft SEQRA findings statement. Part of the draft SEQRA findings statement indicated that, “although the proposed 71-foot-wide building and accompanying signage would be visible from surrounding locations, the building and signage were ‘not expected to present a significant visual impact on the viewshed.’”

Predominantly negative comments were submitted during public hearing and comment on the Germantown Planning Board’s draft SEQRA findings statement. Afterwards, the Germantown Planning Board adopted a resolution conditionally approving the site plan and subdivision. The resolution incorporated the SEQRA findings, and noted that the project complied with all standards for subdivision and site plan approval and the applicable zoning and design standards. Adjacent neighbors commenced a hybrid Article 78 proceeding and declaratory judgment action setting forth 12 causes of action to challenge the site plan approval, among other things.

The neighbors argued that the Germantown Planning Board exceeded its authority by approving a 71-foot façade without a referral or submission to the Germantown Zoning Board of Appeals (“ZBA”) for a determination as to whether an area variance is required. The Supreme Court agreed with the neighbors and annulled the Germantown Planning Board approval because it found the Germantown Planning Board exceeded its authority under the zoning code by failing to refer the issue of the 71-foot façade to the Germantown ZBA. Primax and the Germantown Planning Board appealed, and the Appellate Division reversed.

The Third Department found the lower court erred in concluding that the Germantown Planning Board exceeded its authority in declining to refer the project to the Germantown ZBA. Although local planning boards generally lack authority to interpret their respective zoning codes and this authority is generally reserved for zoning boards of appeals, “a planning board . . . will not be required to refer a matter to a zoning board for a superfluous interpretation of an unambiguous provision contained in the zoning code.”

Germantown’s zoning code, in pertinent part, states “the length of any façade should generally not exceed 50 feet maximum horizontal dimension.” Because this code provision is devoid of any compulsory language, it is deliberately phrased as a guideline – rather than a prohibition. Further, while the Germantown zoning code states the word “shall” is mandatory unless otherwise indicated and other provisions in the code use the word shall, the provision relating to the façade length does not include the word “shall.”

Accordingly, the Court held Germantown Planning Board did not exceed its authority because its approval of the site plan is rational and based simply upon an unambiguous reading of the code. The Court’s decision is a reminder that only zoning boards have the authority to interpret local zoning codes; however, if the zoning code is unambiguous, then planning board is free to act within the purview of its authority.